In Terrorism Case, New Path to Testimony From 9/11 Suspect

By BENJAMIN WEISER

February 13, 2014

Lawyers for a son-in-law of Osama bin Laden moved closer on Thursday to being able to use Khalid Shaikh Mohammed, the self-described architect of the Sept. 11 terror attacks, as a defense witness to rebut the government’s terrorism case against their client, Sulaiman Abu Ghaith.

At the same time, a government request to allow a cooperating witness to testify under a pseudonym was rejected by the trial judge, Lewis A. Kaplan, at a hearing in Federal District Court in Manhattan.

The bid to obtain Mr. Mohammed’s testimony would originally have required one of Mr. Abu Ghaith’s lawyers to travel to the United States naval base at Guantánamo Bay, Cuba, where Mr. Mohammed is being held and is to be tried before a military commission.

Mr. Abu Ghaith’s lead lawyer, Stanley L. Cohen, had indicated that Mr. Mohammed had given his consent to be interviewed, but on the condition that no government lawyer be present during the questioning, a demand the government apparently refused.

A prosecutor, John P. Cronan, said in court that the government had “gone to great lengths” to give a defense lawyer access to Mr. Mohammed under conditions that it believed were “absolutely necessary.”

Unable to reach agreement on an in-person interview, Mr. Cohen told Judge Kaplan on Thursday that he had proposed an alternative approach, in which the defense would pose written questions to Mr. Mohammed. The questions would be screened by government officials, as would any written answers he provided.

Depending on those answers, the defense might ask Judge Kaplan to allow a videotaped examination of Mr. Mohammed, at which both the defense and the government could question him, Mr. Cohen said after the hearing.

Mr. Cohen said that he expected to hear on Thursday night from Mr. Mohammed’s lawyer as to whether the proposal was acceptable, and he suggested in comments outside the courtroom that he anticipated a favorable response.

The defense has said it wanted Mr. Mohammed’s testimony in part to counter a prosecution claim that Mr. Abu Ghaith “must have known” in advance of the so-called shoe-bomb plot by Al Qaeda, including Richard C. Reid’s unsuccessful attempt to detonate explosives in his shoes on a trans-Atlantic flight in December 2001.

Mr. Cohen has said in court papers that Mr. Mohammed had “intimate and unsurpassed knowledge of the ‘shoe bomb’ attacks,” and that his testimony would be relevant and “may very well exculpate Sulaiman Abu Ghaith entirely.”

Prosecutors had requested that Judge Kaplan allow a cooperating witness to testify under a pseudonym and without his town of residence being revealed. They wrote that “these measures, while unusual, are appropriate in light of the unique risks of harassment and safety” that the witness and his family would face if he were to testify “publicly under his true identity.”

Prosecutors have said the witness would testify about his time in Afghanistan in mid-2001, when he encountered Mr. Abu Ghaith at a Qaeda guesthouse in Kandahar. They said he was later arrested in the United States on terrorism charges and pleaded guilty as part of a cooperation agreement.

Mr. Cohen had opposed allowing him to testify under a false name, arguing that the witness had already discussed publicly his past and cooperation with the authorities. In a filing, Mr. Cohen quoted directly from statements the witness had made, apparently in a televised interview.

Judge Kaplan seemed skeptical of the government’s request, saying that another Qaeda cooperator, L’Houssaine Kherchtou, had testified in a 2010 terrorism trial under his real identity.

Questioned by the judge, Mr. Cronan offered additional details about the mystery witness, including that he had been charged in a six-defendant indictment.

An Internet search of the quotations in Mr. Cohen’s filing and other relevant words turned up an interview that suggested that the witness is Sahim Alwan, a member of the so-called Lackawanna Six, a group of Buffalo-area Yemeni Americans who had gone to a Qaeda camp in Afghanistan. Both Mr. Alwan’s lawyer and prosecutors said they had no comment.